WILLIAM LOUIS GANN, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant challenges his sentence, asserting the trial judge failed to follow sentencing guidelines. The court affirms, holding that the judge properly sentenced appellant as a habitual offender under Florida Statute § 775.084, which permits sentencing outside the guidelines up to the statutory maximum.
Once a defendant is found to be a habitual offender under § 775.084 and is therefore not entitled to be sentenced under the guidelines, the only limit on the sentence is the statutorily provided maximum as found in sections 775.082 and 775.083, Florida Statutes. The trial judge correctly applied the habitual offender statute.
[1] A finding in accordance with the habitual offender statute is sufficient to take a sentence out of the sentencing guidelines.
[2] Once an offender is not entitled to be sentenced under the guidelines, the only limit to the sentence is the statutorily provided maximum.
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Join FLexlaw to unlock all legal intelligence“a finding in accordance with the habitual offender statute is sufficient to take the sentence out of the guidelines”
Establishes the core holding that habitual offender findings permit departure from sentencing guidelines
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Join FLexlaw to unlock all legal intelligenceAppellant was sentenced as a habitual offender under section 775.084, Florida Statutes (1983). The trial judge appeared hesitant in applying the habit…
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DAUKSCH, Judge.
This is an appeal from a sentence. Appellant asserts the judge did not follow the sentencing guidelines as he should have. It is apparent to us that the judge, while a bit hesitant and unsure about it, actually sentenced appellant as an habitual offender under section 775.084, Florida Statutes (1983). The hesitation is quite understandable because even the Sentencing Guidelines Commission is having difficulty getting a hard and fast set of rules and comments to the rules. In October of 1983 the Commission printed in its Guidelines Manual as a comment to Florida Rule of Criminal Procedure 3.701(d)(10) that an enhanced penalty under the habitual offender statute may result in a reclassification of the degree of the crime. Sentencing Guidelines Commission, Guidelines Manual, at 4 (Oct. 1983). This comment was never adopted by the supreme court and was the cause of the trial court’s confusion below. In March of 1984 the Commission voted to strike this comment to make clear that the extended term provision of the habitual offender statute does not allow for reclassification of the felony degree. Minutes of Sentencing Guidelines Commission Meeting held March 16, 1984.
Section 775.084 is a statute regarding habitual offenders. It was correctly applied in this case. We agree with the Second District Court of Appeal that a finding in accordance with the habitual offender statute is sufficient to take the sentence out of the guidelines. Brady v. State, 457 So. 2d 544 (Fla. 2d DCA 1984). We hold that once the offender is not to be entitled to be sentenced under the guidelines then the only limit to the sentence is the statutorily provided maximum as found in section 775.082 and section 775.083, Florida Statutes.
AFFIRMED.
COBB, C.J., concurs.
SHARP, J., concurs in result only.
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Citator
Cited By
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Whitehead v. State, 467 So. 2d 779 (Fla. 1st DCA 1985)….084(l)(a), Florida Statutes (1983), is a clear and convincing [*781] reason for departure from the sentencing guidelines. See, Cuthbert v. State, 459 So. 2d 1098 (Fla. 1st DCA 1984); Brady v. State, 457 So. 2d 544 (Fla. 2d DCA 1984); Gann v. State, 459 So. 2d 1175 (Fla. 5th DCA 1984). Whitehead also argues that the extended term provisions of the habitual offender statute simply should not apply when a defendant is sentenced pursuant to Rule 3.701, whether or not the trial court deviates from the recommended…
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Vicknair v. State, 483 So. 2d 896 (Fla. 5th DCA 1986)…ing that a defendant is an habitual offender is sufficient reason to depart from the recommended guideline sentence. See Smith v. State, 461 So. 2d 995 (Fla. 5th DCA 1984). See also Howard v. State, 469 So. 2d 216 (Fla. 5th DCA 1985); Gann v. State, 459 So. 2d 1175 (Fla. 5th DCA 1984). However, since these cases were decided, the supreme court in Hendrix v. State, 475 So. 2d 1218 (Fla.1985), has clearly disapproved of a sentence departing from the recommended guideline sentence based upon any factor which has…
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Dominguez v. State, 461 So. 2d 277 (Fla. 5th DCA 1985)…st DCA 1984). We therefore vacate the sentence imposed on Dominguez in this case, and we remand for resentencing. At that time the trial court may sentence Dominguez pursuant to the Guidelines, including a departure [*279] sentence.6 Gann v. State, 459 So. 2d 1175 (Fla. DCA 1984); Brady v. State, 457 So. 2d 544 (Fla. 2d DCA 1984). SENTENCE VACATED AND REMANDED. COBB, C.J., and FRANK D. UP-CHURCH, J., concur. . § 775.084, Fla.Stat. (1983). . § 810.02(2)(b), Fla.Stat. (1983). .§ 790.23, Fla.Stat. (1983).…1 / 2
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- Brady v. State, 457 So. 2d 544 (Fla. 2d DCA 1984)